February 13, 2016

Misconduct in Public Office

Misconduct in Public Office

The Law Commission has launched a review of the law relating to misconduct in public office, with a view to drafting new legislation. Currently the offence is not defined by statute but rests on common law. As such the history of court cases relating to misconduct in office has had a large part in shaping the offence. Click here for the Law Commission's own very useful historical account of the crime.

Modern case law defines the crime as occurring when 1) a public officer acting as such 2) wilfully neglects to perform his duty and/or wilfully misconducts himself 3) to such a degree as to amount to an abuse of the public's trust in the office holder 4) without reasonable excuse or justification.

The most well-known statement of the offence, however, was made in 1783 by Lord Chief Justice Mansfield in the case of Charles Bembridge, an official working for the paymaster general of the army, who knowingly failed to disclose money owed by his boss. Mansfield argued that Bembridge

was a trustee of the public and the Paymaster, for making every charge and every allowance he knew of ...if the defendant knew of the omission...and if he concealed it, his motive must have been corrupt. That he did know was fully proved and he was guilty, therefore, not of an omission or neglect but of a gross deceit. The object could only have been to defraud the public ... a man accepting an office of trust, concerning the public, especially if attended with profit, is answerable criminally to the King for misbehaviour in his office; this is true by whomever and in whatever way the officer is appointed.

This blog sets out more of the context of this interesting landmark case.

Bembridge was an accountant accused of concealing £48,000 owed to the state by the Paymaster General Henry Fox, Lord Holland, which did not appear in the final account that Holland's estate (he had died in 1774) was submitting. In the eighteenth century, some senior officers were allowed to keep public money in their hands in order to make payments. Bembridge's defence was that because the office of paymaster of the armed forces was a relatively new post, there was no law governing its proper organisation and that therefore he had not broken the law. In so far as there was legislation governing the matter, a law as recent as 1783 said that the paymaster's account books were ‘his absolute property’.Given this semi-private nature of the post, it was suggested, Bembridge could not have been expected 'to turn a spy' on those who employed him; if he had done, 'all mankind must have hooted and hissed him'. Bembridge had ‘wilfully assisted in this concealment’ but not personally gained by it - the more guilty party was probably John Powell, Bembrige's immediate boss, who committed suicide before the matter could be fully investigated. In any case, it could not be right, Bembridge's counsel argued, that every man who had anything to do with public money was liable to indictment ‘if he swerves from his office, in any one article’; if so, there was a danger that it would ‘take in every man, for every little pecadillo’. It was not law ‘that every man, in every public office, that has relation even to the public money, in every breach of duty commits an offence indictable; there are other ways of punishing that man’.

The prosecution put the case very differently. The Solicitor General, arguing for the crown, said that Bembridge's defence was tyring to argue that ‘it is the excuse of a man in a public office, that he connives at public crimes because his friend commits them’. He also insisted that if Bembridge was acquitted, 'not only this man must go unpunished but all the people in all the offices, in this kingdom, of the same sort, may do the like with impunity’. He laid it down that '‘if this is a public office, it appears to me to be a principle that it has public duties belonging to it’.

Judge Mansfield agreed. Whilst agreeing that 'it certainly very much imports the public that the crime should be defined’ - and several hundred years later that is what the Law Commission is proposing - he decided that public offices were publicly accountable, and that where there was a fraud in something concernign the public, then the offence was indictable. He was backed up by Judge Willes who reflected the mood of retrenchment (a campaign for 'economical reform') that had been sweeping the country since the end of the war with America. This was, Willes proclaimed, now ‘an age of reformation, when public economy and frugality alone can save this impoverished state; there is no honest man who would wish to screen an officer of public trust who has betrayed his duty by endeavouring to defraud his king and country'. An example thus needed to be made of a public official who had acted 'corruptly'.

Bembridge was condemned to be imprisoned for six months and fined £2650, the sum he received for making up the accounts. Some said that for an intended fraud of £48000, 'so trifling a confinement, in which he could enjoy all the luxuries of life, was no punishment at all’. The trial exposed the weak teeth of the state in tackling corruption.

The trial nevertheless has another twist. One of the witnesses for the defence was none other than Edmund Burke,who was the grand prosecutor just a few years later of Warren Hastings, the allegedly corrupt governor of India (see previous blog). Here then was a champion of anti-corruption apparently defending a corrupt official. Why? The answer appears to have been that Burke, who had himself become Paymaster of the army, had been attempting to initiate reforms designed to save public money. But he needed expert advice from insiders in order to do so. Bembridge had been helping Burke to reform the pay office, which which had ‘been rather like a private office of account than a public administration’ and so Burke prasied Bembridge’s ‘disinterestedness’. Burke had even re-instated Bembridge after he had been dismissed for his corruption. Nor was that the end of the matter. When Burke's reinstatement of Bembridge was debated in Parliament (on three separate occasions), Burke found himself under attack from those who said that to re-emply a man 'accused of a crime amounting to public robbery, implied a contempt of public opinion, and was a daring insult'. Burke defended his actions and ' lost all control over his temper’, earning himself a censure from the House. Burke once more defended Bembridge as a man 'of religious integrity'. But he had to agree to the trial as the price of the parliamentary onslaught and one MP insisted that it should be 'an established principle that no person under prosecution should, during that prosecution, hold any office of trust’.

Bembridge's trial was thus in part the result of a parliamentary, even partisan, piece of manouvering but also the result of popular pressure expressed through MPs' anger. Burke was even caricatured as a corrupt minister with two dogs, labelled 'Pay Office Clerks', and depicted with money strapped to their backs.

detail of loaves and fishes burke bembridge

The anti-corruption reformer Burke was thus himself portrayed as corrupt or at least self-interested; but he had argued that he needed the help of a corrupt official in order to fight corruption and save the public money. Sometimes anti-corruption was/is a far from straight-forward matter with black and white villains and heroes. And was some of Burke's animus against Hastings a reflection of this earlier incident, an attempt to vindicate his own anti-corruption credentials and to capitalise, as he had seen others do, on the sense of public scandal that corruption issues could arouse?

Of course, the notion of public office as a trust, which was central to Mansfield's judgement had a longer history; and Bembridge's case was not the first one for misconduct. But those matters will have to wait for another blog....

June 07, 2015

Showing Corruption the Red Card

On the back of the Fifa corruption scandal, David Cameron has urged that we tackle corruption more widely.

Whilst his intentions seem entirely laudable, Britain’s own history suggests the way to achieving this may not be straightforward and that an essential part of the process is a debate, at times an uncomfortable one, about what constitutes corruption.

During the course of its evolution as a major European and imperial state with a leading economy, Britain experienced a protracted debate about what corruption was, what caused it, and how to tackle it. That debate lasted at least three hundred years and arguably longer.

The Fifa scandal has highlighted many interesting issues, but two in particular have historical parallels. The first is that corruption can infect non-governmental institutions just as much as the state. This suggests that the definition of corruption currently used by the World Bank and others – that corruption is the abuse of public office for private gain – is too narrow. A more useful one is ‘the abuse of entrusted power for private gain’, the definition used by anti-corruption lobbying organisation Transparency International. Clearly Fifa officials were not public officials in the sense of occupying an office of state; but they were public officials in the sense that they had entrusted power, from local footballing associations and even, in a wider sense, from football fans. This circumstance was the norm in pre-modern Britain, when the officered state was incredibly small and many institutions of power were semi-private. The Bank of England, for example, was not originally a state institution but a set of private investors who loaned money to the state. Thinking about corruption in terms of the abuse or breach of trust might be a useful one in the modern world too, since it is a concept that spans the state, financial institutions, communities and even individuals.

The second issue raised forcibly by the Fifa scandal is how behaviour can seem corrupt to some but not to others, and Britain’s own history is full of examples of this double vision. One justification of Fifa’s activities has been that the organisation has still promoted the public good: significant investment has been made in the footballing infrastructure of developing countries. We do not need to believe that every delegate to Fifa was receiving back-handers to explain why Blatter was able to garner so many votes for his albeit-temporary re-election. Yet to those of in the West, Fifa’s activities appear highly self-interested and to have breached anti-corruption laws. Blatter himself, from this perspective, is represented as monstrous.

The ambiguity about whether behaviour is corrupt and the resulting double-sidedness of those in public office leads to the same individual being seen very differently by different groups. We might remember figures from our own history, with whom we apparently have a good deal of sympathy, who seemed sure about the propriety of their own actions despite the condemnation of others. Take, for example, the diarist Samuel Pepys, about whom I wrote an article last year. As an administrator of the navy in the 1660s Pepys was in a good position to take back-handers for lucrative navy contractors and his income in that decade increased by a staggering 600-fold, clearly not just the result of official pay. Yet although Pepys condemned corruption in others, he did not see himself as corrupt. He called those who paid him sweeteners his ‘friends’ who were repaying ‘favours’ he had done them; and he clung to the notion that the key thing was whether his activity advanced the king’s service. If it did, then it did not really matter too much if he himself gained along the way.

pepys National Portrait Gallery image of Samuel Pepys

Pepys was nevertheless attacked in print for his corruption. A pamphlet, published whilst Pepys was incarcerated in the Tower of London because of his alleged complicity in the ‘popish’ policies of the future James II, listed at length the luxury items that he was said to have taken or been given. Here, then, is another parallel issue between pre-modern Britain and the Fifa scandal: who is responsible for exposing and then cleaning up corrupt behaviour? Should it be the press, the agencies of the law, Parliamentary or international representative bodies, or the mass of the citizenry?

The press in Britain’s history of ‘anti-corruption’ was an important tool; but it was seldom successful on its own and in any case many thought that the press was itself a corrupting factor (the spectacle of newspaper groups convicted of phone-hacking venomously attacking the corruption at Fifa has been an interesting one). The justice system was also significant, bringing many to book; but the law did not always reflect public opinion about what was corrupt behaviour. Warren Hastings, the governor of India who many regarded as corrupt, was nevertheless acquitted in 1795 after one of the longest corruption trials in British history. Parliament itself was hardly in a position to crusade against corruption when, prior to the reform acts of the nineteenth century, the process of electing MPs was itself highly corrupt. In turn, one MP in the first decade of the nineteenth century blamed the corruption of Parliament on the electorate: if voters were not so grasping, MPs would not have to offer them so many blandishments. In other words, in that MP’s mind, the people were themselves corrupt and there were plenty of those who saw corruption not as a judicial or administrative issue, but as a moral or even a religious one affecting the mass of the people. The culture of greed and the desire to ‘make a fortune’ (itself a phrase invented in the late sixteenth/early seventeenth century) were, some claimed, the result of the decline of piety and the replacement of Christian selflessness with the self-interested values of the market. Deciding on what authority might remedy corruption therefore involved far-reaching questions about how far the law reflected public attitudes to what constituted corruption; about how far institutions such as the press and Parliament were suitable tools for reform; and about how far any rule changes might be effectual if they were not accompanied by a more general cultural and social re-examination of individual behaviour and values.

All this has made for lively debate in Britain for a very long time. This was something which stirred national debate, advanced through the press but also through popular pressure in the form of mass-petitions, protest meetings and even riots. Fear of serious unrest was one of the key factors pushing through the Reform Act of 1832. The current PM calls corruption ‘the enemy of democracy’; yet active debate about corruption was one of the factors that actually helped the democratising process and helped to refine the values of accountability that we now invoke. The debate about corruption in the past was a lively, messy but also reasonably inclusive and popular one, not just one for politicians in Parliament, an institution which until the nineteenth century was itself plagued with accusations of being corrupt and itself in need of reform (a call that has some resonance with popular perceptions today). If the Prime Minister is serious about the need for tackling corruption today, perhaps we need some such national conversation again. But it might not be pretty.

May 24, 2015

Murdoch's Madras ancestor

In February 2015 the US Justice Department dropped an investigation into possible corruption at News Corp, after the UK phone-hacking and accusations that public officials had been paid for news stories. In May 2015 stories about alleged corruption in Nepal were the subject of a BBC documentary, in which it was suggested that money intended for relief efforts after the earthquake might be siphoned off. These two apparently unconnected stories are linked by an early nineteenth century scandal, involving News Corp’s boss Rupert Murdoch’s great great great grandfather, Robert Sherson, an East India Company official who was accused of embezzling money from a relief effort after a famine and then violent storms hit Madras in 1807. We have Sherson’s side of the story, since he had access to the press, and published several vindications of his conduct.

Madras in 1807 by Edward Orme © Trustees of the British Museum

Robert Sherson had been appointed as Superior in the Grain Department, and supervised the food intended for the relief of 300,000 inhabitants affected by a famine. On 10 and 11 Dec. 1807 a violent storm tore the roof off the grain store, leaving it vulnerable to ‘the depradations of the starving multitude’. Sherson ordered a survey of what was left and ‘incautiously’ signed the estimate, ‘not suspecting public servants in whom he himself had been in the habit of confiding largely upwards of six years’. But the estimate was not believed by Sherson’s bitter enemy in Madras, Mungo Dick, with whom he had a long-standing dispute and, unluckily for Sherson, Dick had power over him as one of the members of the Committee overseeing his actions. Dick’s investigations concluded that the estimate of losses had been deliberately inflated and refused to accept that the mistake was an honest one. A Committee of Enquiry was set up by Governor Sir George Barlow, who, ‘the dupe of designing men’, appointed Dick as its chairman. The result was that on 10 Feb. 1808 Sherson was dismissed from his offices (he was deputy Customs Master, Assay Master, Director of the Government Bank, posts worth £4800 pa) under the charge of having fraudulently sold grain to the value of £12,000. Sherson was also accused of selling grain at higher prices than were authorised by the government and hence profiteering from the famine; and there were later accusations that he had attempted to bribe his assistant, a Mr Clarke.

Sherson’s defence was that he had done all he could to ensure an accurate estimate of the store had been made as quickly as possible after the story; and he refuted the charge of embezzlement, which rested on accounts drawn up by ‘the Mutsuddee or Hindoo Accountant’ who was Dick’s ‘creature’ and had allegedly doctored the accounts: ‘every one …knows the facility with which they may be mutilated. That nothing is more easy than by a dot or a scratch to add an hundred or a thousand even’ to the sums.’

When Sherson's case eventually came to court in 1814, the Supreme Court in Madras threw it out, arguing that frauds might have been perpetrated without his knowledge and that, in the opinion of the Lord chief Justice, ‘the whole amounted to nothing'. Another justice declared that if the matter had come before a British court Dick would have been jailed ‘as a perverter of justice’ and that he strongly suspected the accounts used against Sherson had been forged. Indeed, he thought it ‘astonishing, that [the Indian] Government could have listened to such a charge against a good and worthy servant, founded on infamy, fraud and conspiracy’. A third judge thought there was ‘not a scintilla of evidence beyond the opinion of Mr Cooke, founded on hearsay’. Sherson should leave court, he said, ‘freed from all suspicion of having failed in any manner whatever in his duty to his employers’. He was eventually reinstated and in 1815 the East India Company even voted him a present of 20,000 pagodas as recompense for his protracted suspension from office, and sent him back to India ‘with credit’.

The accusation against Sherson has all the hallmarks of a man with a personal grudge using a good opportunity to strike at a rival. The smear of corruption hung over him for a long time before being dispelled (and even after the judges’ ringing endorsement, suspicions about his earlier corrupt activity continued to circulate). On the other hand, Sherson had access to the press to clear his name and he also had powerful backers in the British Parliament. Seven years after he had been suspended, a Member of Parliament, Alexander Novell, waged a sustained campaign to have Sherson’s name cleared. The importance of access to politicians and the press may have been a lesson the family learnt well.

May 11, 2015

Australia's difficulties with the definition of corruption

The High Court of Australia recently made a controversial decision about the meaning of "corrupt conduct". The court based its decision on what they called the 'ordinary understanding of corruption in public administration'. The ruling has undermined the legal standing of several prominent investigations by the NSW anti-corruption commission ICAC. For more details about this, and a 'listen again' radio programme exploring the history of trying to define corruption, see


This includes interviews with me and other academics working on this issue.

February 23, 2015

Cash for Access: The East has haunted British politicians before.

The allegations that two senior MPs, Sir Malcolm Rifkind and Jack Straw, were willing to accept payment in order to facilitate favoured ‘access’ for a Chinese Hong Kong company sound very familiar. A similar scandal in 2012 involved other politicians appearing to offer payments for access to the Prime Minister and Lord Chancellor. The Conservative government of John Major was also rocked by accusations that cash could be paid for questions to be asked in Parliament.

But there is an even older history of such scandals. At the end of the seventeenth century the Speaker, Sir John Trevor, was expelled from the House of Commons for having received 1000 guineas for promoting the passage of a bill wanted by the City of London. But this was only the tip of an iceberg. Far larger sums were found, the same year, to have been paid by the East India Company to MPs, including Trevor again, in order to secure the charter which gave it a monopoly to trade in the Far East.

LeedsThe Duke of Leeds (public domain image)

Sir Thomas Cooke, the master of the East India Company, was grilled to explain the £90,000 that had been spent by the company for ‘special services’ when the bill was passing through parliament. A merchant-turned-company advocate, Sir Basil Firebrace, revealed that payments had also been made to Charles Bates, almost certainly intended for the Duke of Leeds, who at the time enjoyed one of the most privileged political positions as Lord President of the Council. Bates admitted that he had left the money at Leeds’ house, but claimed, somewhat implausibly, that this was only so that it could be counted properly by one of the duke’s servants, John Robart, who then conveniently absconded before he could make any further revelations! Despite an important witness disappearing, corruption was at the heart of the three articles drawn up against the Duke in order to prosecute him in Parliament, a process known as impeachment.

The 1695 scandal claimed the scalps of two high profile politicians and enabled a shift of government, from Tories to Whigs. It's too early, of course, to rush to judgement about the current revelations. But some might think it time to consider bringing back impeachments for future cases where the wrong-doing is clear. The last impeachment was held in 1805, again on a corruption charge, against the earl of Melville. An impeachment was again attempted in 1848, against Palmerston for his foreign policy (and money was alleged to have changed hands), but it failed to secure enough votes and the process has not been tried since then. A Select Committee in 1967 recommended that impeachments should be abolished; but they have never formally been removed from the statute book. They were perhaps abandoned because they could easily become partisan affairs: in 1695 Leeds believed that the campaign against him had been a long time in the planning, waged by Charles Montagu, the Chancellor of the Exchequer and one of the leaders of a group of Whigs intent on removing prominent Tories such as Leeds from political influence. Political they might have been; but they were also ritual cleansings of the parliamentary stable, moments of drama that served as reminders about the value of integrity.

February 15, 2015

Black–listing rich exploiters of the system

Recent scandals about tax evasion have focused attention on whether the rich are unfairly benefiting from the ‘system’ without paying their way. The perception, damaging to the political process, is that politicians and their super-rich friends exploit, rather than fully contribute to, the state.

Such sentiments are far from being new. In the early nineteenth century radical journalists attacked a ‘system’ of corruption that they saw as pervasive and which enabled the rich to exploit the state, thereby pushing up the taxes of those lower down the social scale. Such arguments were, as now, sharpened by severe financial pressures, in this case the result of the huge outlay on the Napoleonic wars.

In 1807 the list of the rich who were exploiting the state to draw money from it became an election issue. This image shows a ‘genius of elections’ with ‘wings of corruption’ reading to John Bull a list of MPs who had been returned to Westminster and the bribery used by the government to get them there. John Bull sits resolutely on his box of property, refusing to part with any more of it. One of the monster’s legs is labelled ‘Red Books and Sinecures’, suggesting that the notion of a red book came from the parliamentary investigations which had revealed public expenditure.

genius of elections

In 1816 ‘a commoner’ published the Extraordinary Red Book. Rather like a print-out of HSCB tax evaders it named and shamed those who held ‘Places, Pensions, Sinecures’ from the state, amounting to ‘a system of corruption’, with critical notes about ‘the expenditure of public money’ and tart comments about the national debt. Those listed included ministers, peers, MPs, the royal Court and other member of the elite. In the words of the preface ‘we have been ground down, and oppressed, year after year, to answer the purposes of men … born only to the idol of self-interest’. In this satire from the same year, John Bull is shown full of rage about the way in which public money was being paid to the rich.

Another best-selling list of the rich who had their noses in the trough was published in 2 volumes, 1820-3, called The Black Book, or Corruption Unmasked! Being an Account of Persons, Places, and Sinecures. So successful was this that further editions were published in 1831, 1832 and 1825, years in which agitation for reform was at its height. The compiler of the Black Book was John Wade, who went on to edit the

‘Junius Letters’, which had been sent to a newspaper in the late 1760s and early 1770s launching devastating attacks on the prime minister, the duke of Grafton, who was mercilessly satirised for both his corruption and his incompetence.

The idea of a black list nevertheless had a longer history. Although the Oxford English Dictionary gives the first use of ‘black list’ as 1624, twenty years earlier, in 1604, the playwright Thomas Middleton published The Black Booke, so named ‘because it doubly damned the Devil’, in which he attacked those who ‘corrupt with the mud of mischiefs the pure & cleare streames of a Kingdome’. Black-listing is thus intrinsically linked to Britain’s long history of attacks on corruption.

red book john bull

February 09, 2015

Sweeping out corruption with a clean broom

In India, in New Delhi, the Common People’s Party (or Aam Aadmi Party), uses anti-corruption as a rallying cry and the broom as a symbol of opposition to corruption. ‘Vote for the broom’ has become an electoral slogan.


[image from International Business Times]

You can read more about the AAP here

The notion that corruption is ‘filth’ that needs sweeping away is a long-standing and pervasive one that was shared by Britain when it was confronting corruption. Several visual satires of the eighteenth century, when there were anti-corruption campaigns, used the image of the broom. In this image from 1830 John Bull, the personification of the true Briton, sweeps his way towards reform of the parliamentary system.

bull sweeping 1830

A number of the satires play with the story of the fifth labour of Hercules, which was to cleanse the Augean stables, where a thousand cattle had lived for 30 years without being mucked out!

The Hercules myth also shone a light on the anti-corruption heroes fighting against the odds – Samuel Whitbread (of brewing fame) and Sir Francis Burdett in England – a role that Arvind Kejriwal apparently seeks to play in India.

The image of the cleansing broom was made more common by the prominent support given by Lord Chancellor Henry Brougham (whose surname provided scope for visual puns on his name) to the cause of reform. In this image Brougham is shown beating the monster of corruption.

whitbread sweeping

burdett sweeping

The broom was one of many metaphors used to describe corruption – later blogs will explore these visual and verbal symbols of the anti-corruption movement.

brougham sweeping

January 10, 2015

Satire, Corruption, and Religious Parody

Hone Printing Press from House that Jack BuiltThe extent to which free speech includes a right to offend religious sensibilities is now being much debated in the light of the murder of French satirists at Charlie Hebdo in Paris.

Similar issues were raised in 1817 by the prosecution of the British radical publisher and writer William Hone for parodying Christian worship in his satires against what he saw as widespread corruption in the period after the end of the Napoleonic wars.

Hone published three parodies of the creed, litany and catechism, using satire in order to press the case for the reform of corruption. The Sincecurist’s Creed, for example, parodied the code of religious belief to mock those who seemed to be paid by the state for work they did not do and yet voted religiously with the government:

WHOSOEVER will be a Sinecurist: before all things it is necessary that he hold a place of profit.
Which place except every Sinecurist do receive the salary for, and do no service: without doubt it is no Sinecure.
And a Sinecurist's duty is this: that he divide with the Ministry, and be with the Ministry in a Majority

Hone admitted having ‘an irresistible propensity to humour’. But the government clearly did not share his sense, since it charged him with blasphemy for each of the three tracts. At the heart of the government’s position was the principle that Scripture should be ‘never used for secular purposes’. Hone, defending himself throughout the three extremely gruelling trials, saw himself as a martyr for free speech. He argued that ‘if there was ridicule, those who rendered themselves ridiculous’ could not complain of libel; and that there was a long history of religious texts being used for parody (indeed, he accumulated a very large collection of such texts, stretching back to the Protestant reformation of the sixteenth century). He included visual parody in his catalogue. He also suggested that there were two types of parody: ‘one in which a man might convey ludicrous or ridiculous ideas relative to some other subject; the other, where it was meant to ridicule the thing parodied. The latter was not the case here, and therefore he had not brought religion into contempt’. He also suggested that the government was extremely hypocritical, since one of its own cabinet ministers, George Canning, had recently parodied a religious text for political purposes. Hone produced text after text in court to prove his points and was found not-guilty in each of the three trials.

Hone continued to use satire to attack corruption, though his next most important – and best-selling - publication parodied a nursery rhyme rather than Scripture to make its point. The House that Jack Built (1819) lampooned the government for building a corrupt House; but it also featured a picture of the printing press as ‘THE THING’ which could ‘poison the vermin’ who plundered the wealth of the nation.

Hone, ironically, became more religious in his later years and, aware of the offence it caused, did not use religious satire again. But the very long lists of religious parodies that he produced in court stood to highlight how important religious parody was to the Protestant tradition. Luther himself parodied the Psalms, as had eminent reformers in England. As Hone put it, parody ‘had been followed by the most venerable and respected characters this country ever produced’.

October 05, 2014

What would the first Tories have made of it?

A report published on 4 October 2014 by the union Unite [http://www.unitetheunion.org/news/tories-in-15-billion-nhs-sell-off-scandal/] has found that, since 2012, £1.5 billion of NHS funds has been contracted to private companies linked to 24 Tory MPs who voted for the Health and Care Act. Such contracts are legal; but is this very close relationship between elected representatives and private interests a form of corruption?marlborough as knave of hearts

At the very least there is an irony here. The first Tory party, created in the late seventeenth and early eighteenth centuries, was highly critical of party politicians (their rivals, the Whigs) who sought to hoover up state assets by giving themselves lucrative contracts. At that period, of course, there was no national health service; but large amounts of government funds were spent on war with Louis XIV’s France and the same issue of contracts was at stake.

In December 1711, just over a year after the Tories had won a landslide electoral victory, a prosecution was launched by them against the duke of Marlborough, the military hero whose services to the country had been recognised with the gift from the nation of Blenheim Palace. To be sure, there was politics involved – Marlborough had been a Tory but had moved closer to the Whigs, and the Tories sought revenge. Marlborough's wife, the redoubtable Sarah, was also close to the Whigs. But in any case, the point at issue was a contract that the duke had to supply the army with bread, from which he made a 6% profit. Between 1702 and 1711, he received £62,000 (roughly the equivalent of about £5m in today’s money). Here, then, was public money being diverted into a contract from which Marlborough personally gained (and he had several crony friends who had also procured lucrative contracts to provide the army with clothing and supplies). The first Tory party was outraged. Jonathan Swift, by then a Tory partisan, satirised Marlborough’s avarice in his poem The Fable of Midas – the mythical king whose touch turned everything to gold – and in pamphlets Swift alleged that Marlborough, like other Whigs, was intent on profiteering from the war. Indeed, the object of the Tory attack included the whole new financial system – including the Bank of England that had been a Whig creation in 1694 – which Tories saw as a device to transfer wealth into the hands of their political enemies. ‘Corruption’ was a Tory rallying cry in the early eighteenth century, both in the reign of Queen Anne and then during the premiership of Robert Walpole, who was another of those prosecuted alongside Marlborough for his share in the contracts scandal and was expelled from the House of Commons for his ‘notorious corruption’.

The first Tories, then, saw it as their patriotic duty to oppose the corrupt and self-interested transfer of state funds into the hands of cronies by means of dubious contracts. What would they have made of today’s Tory party?

The text of the 1711 report into Marlborough’s contracts can be read at http://books.google.co.uk/books?id=tFMyAQAAMAAJ&pg=PT547&lpg=PT547&dq=1711+marlborough+contracts&source=bl&ots=7a69mwUvNu&sig=Gbfji9vU6ZhTNE0pLway3QPNALc&hl=en&sa=X&ei=-noxVNjcKcLO7gbJ44CwBg&ved=0CDoQ6AEwBQ#v=onepage&q=1711%20marlborough%20contracts&f=false

Image: A playing card satirising the duke of Marlborough as a money-making ‘rogue’

October 02, 2014

GSK's Fine for Corruption

On 19 Sept 2014 the British pharmaceutical giant GSK was fined almost £300m by a Chinese court for bribery of non-government personnel (ie doctors) to use its products. This is the largest fine levied on a company in China. The head of the company’s China operations, Mark Reilly, was given a three year suspended prison sentence. The Chinese authorities alleged that bribery was ‘a core part of the activities of the company. To boost their share prices and sales, the company performed illegal actions’ [ http://www.theguardian.com/business/2013/jul/15/glaxosmithkline-china-bribery-allegations ]

Hastings offering presents cartoon.

The story of British companies being accused of bribery in Asia is nevertheless not a new one. In the eighteenth century members of the East India Company were also accused of corruption. Merchants returning to Britain having made a quick fortune in India were known as ‘nabobs’, an anglicisation of ‘nawab’, meaning prince. In 1787 one of the nabobs, Warren Hastings, who was called ‘the Captain of Iniquity’ by leading prosecutor Edmund Burke, was indicted by the British Parliament for bribery and corruption. The trial lasted seven years.

The charges against Hastings were, like the ones against GSK, designed to show that corruption was a core part of the East India Company’s activities. He was accused of accepting bribes or ‘presents’ from Indian princes; of handing out corrupt contracts (including for opium, which was sold to China); and of selling offices. In many ways Hastings personified a wider problem of endemic corruption in the East India Company. Like GSK, the Company’s share price was affected by its fortunes in Asia, and Hastings did all he could to promote the Company’s as well as his own interests.

Yet in 1795, in contrast to the recent verdict in China, Hastings was found ‘not guilty’ of the charges against him. In the eighteenth century, the dividing line between a ‘present’ and a bribe was an ambiguous one – this problem was all too apparent in Britain but was magnified in an India context because of a culture of gift-giving. Fostering a good economic network by cultivating social interactions was part of the merchants’ lives, creating muddy lines between personal interests and the interests of the company.

The eighteenth century East India men thought that a present was not necessarily a bribe that distorted how they behaved. George Vansittart, for example, wrote that ‘some presents I have certainly received but you will never hear of my bargaining for them or being influenced by them’ and he thought the same could be said of Hastings: ‘I would not say that Mr Hastings never has received presents but I think I can safely answer for his never having placed his private interest in competition with the publick advantage’. Another nabob was even more defiant: Richard Barwell protested in 1775: ‘I do not pretend …to say I never received a present, but I am certain I can defy any person to charge such to me as a crime’. This old notion of the defensibility of presents – that gifts did not necessarily corrupt - may still persist today.

One other thought is provoked by the GSK affair. The prosecution for bribery was, as GSK’s statement makes clear, ‘of non-government personnel’ (though how far Chinese doctors were non-governmental remains unclear). A common definition of bribery, used by the World Bank and others, is ‘the abuse of public office for private gain’. Here, however, the abuse seems to have been by a commercial company, and the Chinese state has gone after the corrupter rather than corrupted. In other words, the case challenges the economists’ definition of what corruption is and who should be prosecuted for it.

Image caption: Hastings was also accused of offering ‘presents’ to the royal court in order to secure favour during his prosecution for corruption.

The Monster of Corruption, a detail from a satire of 1819

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Images on this site are Trustees of the British Museum. The views expressed on the blog are my own and do not necessarily reflect those of the University.

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